UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.B.A. L.L.B (Hons.) – Corporate Laws

Academic Year – 2017-18

Semester I

Session : July-December

LEGAL METHODS AND REASONING PROJECT

PRECEDENT

Under the supervision of – NANDANI BISWAS

PREPARED BY:

ANUSHKA AGARWAL

SAP ID: 500060538

ARPAN SEMWAL

SAP ID: 500060413

INDEX
1. Legal source of English law
2. Precedent as a source of law
3. Types of precedent
 Original and declaratory precedent
 Authoritative and persuasive
4. Doctrine of Stare Decisis
5. Judicial precedent as a source of law
6. Merits of doctrine of precedent
7. Demerits of doctrine of precedent
8. Judicial techniques of using a Precedent
 Refusal to follow a precedent
 Distinguishing to follow a precedent
 Reversing a precedent
 Overruling a precedent
 prospective overruling

9. Conclusion

10. bibliography

LEGAL SOURCE OF ENGLISH LAW

The span "sources of law" also refers to the self-governing state or the state from which the law originates
its force or validity. In civil law systems, one has only to look at the suitable code; but in common
law systems one needs to look at legislation (primary and secondary) and at the decided cases that
covers judicial precedent.

PRECEDENT AS A SOURCE OF LAW:

The judgments that have been taken before as well the decisions of a court of law that have been cited as
an authority of legal principle embodied in it.. Judges often also take guidance from previous decisions
and rely on past interpretations of questions of law. Those instances or cases which may be taken as an
example of rule for following cases are known as precedents. The value of precedents is being considered
in almost all legal systems across the world, since the ancient eras. While the degree of persuasiveness
may vary as per the court delivering the judgment, the doctrine of stare decisis binds courts to stand by
their decisions and not interrupt the uninterrupted.
TYPES OF PRECEDENTS:

 Original and declaratory precedent

 Authoritative and persuasive

Original precedent and declaratory precedent:

Judicial decisions are of two types namely those which don’t follow the pre-made laws and thus create
their own laws and second those which apply the known and settled principles. Both of them are treated
as precedents. It’s because of the legal principles embodied therein are authoritative guides to the courts
for the determination of future controversies. Judicial decisions are mere decisions of pre-existing rules.
On the other hand original precedents though fewer in number are greater in importance, as they alone
develop the law. The distinction between original and declatory precedents is based on two diametrically
opposite theories of precedent. Some say that precedents maybe original because they lay down original
or new principles of law. Other jurists say that the precedents are merely reiterate recognized principles of
law. Blackstone feels that precedent are considered as declaratory only.

Authoritative and persuasive precedent:

 An authoritative precedent is the one where the judge is bound to follow that. As the name
suggests authoritative precedent is when what is being taken up by the supreme courts is being
followed in the subordinate courts.
 It must be followed by the inferior courts whether they approve of it or not. They are bound to
follow it.

 A judicial precedent of the Andhra Pradesh high court is authorities in relation to other
subordinate courts in Andhra Pradesh.

 An authorities precedent has a legal claim, recognition, influence and binding force on the
inferior courts.

 Authoritative precedents are legal sources of law.

 Persuasive precedents:

 In case of persuasive precedents the judges are under no obligation to follow .

 A foreign judgment is a persuasive precedent.

 The judges pursue, interpret, take the assistance of the persuasive precedent but are under no
obligation or compulsion to follow it.

 A decision of Tamil Nadu or Karnataka High Court in relation to the Andhra Pradesh High
Court is only persuasive.

 A persuasive precedent has no legal claim, influence or biding force. Merits make it influential.

 Persuasive precedents are merely historical.

DOCTRINE OF STARE DECISIS:

It is a settled principle of law that a judgment, which has held the field for a long time should not be
unsettled. The doctrine of STARE DECISIS states that nothing should be disturbed that is already settled.
Those things which have been adjudged for so long ought to be in peace. The underlying principle of the
doctrine is to maintain consistency over uncertainty.

For the precedents to work effectively three elements are:

 There should be undisputed and accepted hierarchy of courts with one court
having the supreme authority over the other courts.
 The second condition is the presence of an efficient law or case reporting system
 Third element is to balance between two apparently conflicting needs i.e. the
need of having consistency and the second is the need to avoid the restricting
effect on the development of law by following such a method.
The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the
decision thereon. The same learned author2 who advanced this definition went on to suggest a helpful
formula. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B
and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff,
judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in
which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future
case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority,
though it may be of value as an analogy.

 It follows from William’s analysis that the addition of fact D to a future case
means that conclusion X May or may not follow. In other words, the presence of
a new fact D may have the effect of distinguishing the future case from the
precedent or conversely the precedent may be extended to apply to the future
case.

JUDICIAL PRECEDENT AS A SOURCE OF LAW:

When the past decisions of a court are being used as a reference or guidance for future judgments than
those decisions are called as judicial precedents. Precedent is based upon the principle of stare decisis et
non quieta movere, more generally stated to as ‘stare decisis', meaning to “stand by decided matters”. A
binding precedent is where preceding judgments must be followed. This can sometimes lead to unjust
decisions, which I will address when talking about the advantages and disadvantages of binding
precedent. First I will address how the process of judicial precedent works, including the hierarchical
construction of the courts, moving on to the advantages and disadvantages of using the doctrine.

A binding precedent is created when the facts of a later case are sufficiently similar to the facts of a
earlier case. The doctrine of precedent is often stated to as being a stringent doctrine. Within the court
hierarchy, every court is bound to previous decisions made by courts higher than them. At the very high
or top niche of the court hierarchy is the European Court of Justice, which is followed by the House of
Lords, which is reflected to be the supreme court as many laws do not concern European Union law.
Decisions made by the House of Lords become binding and are applied on all other courts within the
hierarchy. Below the House of Lords is the Court of Appeal, which has two divisions, Civil division and
Criminal division. Both divisions are bound to decisions made by the House of Lords and the European
Court of Justice. Additionally, they are bound to their own decisions, with the exception that the Criminal
division is suppler where a case includes a person's freedom. The Divisional Courts along with the High
Court are also bound to decisions made by the House of Lords and the European Court of Justice, with
the accumulation to the Court of Appeal, and the Divisional Courts in the case of the High Court

Merits of the Doctrine of Precedents

 Precedent shows respect to one ancestors’ opinion. Eminent jurists like Coke and Blackstone
have supported the doctrine on this ground. The say that there are always some reasons behind
these opinions, we may or may not understand them.
 Precedents are based on customs, and therefore, they should be followed. Courts follow them
because these judicial decisions are the principal and most authoritative evidence that can be
given of the existence of such a custom as shall form a part of the common law.
 As a matter of great convenience it is necessary that a question once decided should be settled
and should not be subject to re-argument in every case in which it arises.  It will save time of the
judges and the lawyers.
 It bring certainty in law. If the courts do not follow precedents and the judges start deciding and
determining issues every time afresh without having regard to the previous decisions on the point,
the law would become the most uncertain.
 Precedents bring flexibility to law. Judges in giving their decisions are influenced by social,
economic and many other values of their age. They mould and shape the law according to the
changed conditions and thus bring flexibility to law.
 Precedents are Judge made law. Therefore, they are more practical. They are based on cases. It is
not like statue law which is based on a priori theory. The law develops through precedents
according to actual cases.
 Precedents bring scientific development to law. In a case Baron Parke observed ‘It appears to me
to be great importance to keep the principle of decision steadily in view, not merely for the
determination of the particular case, but for the interest of law as a science.’
 Precedents guide judges and consequently, they are prevented from committing errors which they
would have committed in the absence of precedents. Following precedents judges are prevented
from any prejudice and partially because precedents are binding on them. By deciding cases on
established principles, the confidence of the people on the judiciary is strengthened.
 As a matter of policy, decisions, once made on principal should not be departed from in ordinary
course.

Demerits of the Doctrine of Precedents

 There is always a possibility of overlooking authorities. The vastly increasing number of the
cases has an overwhelming effect on the judge and the lawyer. It is very difficult to trace out all
the relevant authorities on the very point.
 Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the
horns of a dilemma. The courts faced with what an English judge called “complete fog of
authorities.”
  A great demerit of the doctrine of precedent is that the development of the law depends on the
incidents of litigation. Sometimes, most important points may remain unjudicated because
nobody brought action upon them.
 A very grave demerit or rather an anomaly of the doctrine of precedent is that, sometimes it is
extremely erroneous decision is established as law due to not being brought before a superior
court.

Judicial techniques of using a Precedent

An analysis of the judicial process reveals several judicial techniques of using a precedent are as follows:

 Refusal to follow a precedent

 Distinguishing to follow a precedent
 Reversing a precedent
 Overruling a precedent

Refusal to follow a Precedent

A judge can refuse to follow a precedent a precedent only if it is not binding in nature. In the case of
Persuasive precedent, judge has the freedom to decide whether to follow the same or not. Even in cases
where there is a refusal to follow, the judge often considers the precedent carefully, and after a process of
reasoning comes the conclusion that it need not to be followed.

Distinguishing a Precedent

Every decision is pronounced on a specific set of past facts,. When similar situations arise in the future, a
judge has to decide whether the rule formulated in the previous decision should be applied in the present
case. In other words applying precedent is a process of matching the fcts of the precedent and ruling
thereon, with the facts of the instant case. If they match, the rule is applied. If not, it is distinguished. The
decision whether the facts match, is to be taken by that judge. Since the decision whether to apply the
precedent, depends on it, the technique of distinguishing a case affords great flexibility in the application
of precedent.

Reversing a Precedent

Reversal of a decision takes place on appeal. The effect of reversal is normally that the first judgment
ceases to have any effect at all. It amounts to a nullification of the decision as well as the principle which
formed the basis of the decision.

Overruling a Precedent

Overruling involves disapproval of the principle laid down in a decision of the same or a lower court. It
never affects the decision in the earlier case, and the parties in the overruled case continued to be bound
by the decision under the doctrine of res judicata. Reversal takes place in a appeal from the decision,
whereas overruling takes place in some other case of similar nature.

Overruling may be express or implied. In express overruling, it is clearly stated that a particular decision
is overruled. It is implied, when a later decision of a superior court is inconsistent with that of the inferior
court. The effect of overruling is retroactive except that it does not unsettle matters which are res judicata
as between the parties in the overruled decisions, and the matters accounts which have been settled. This
is consistent with the theory that judges do not make law, but only declare what always has been the law.
It considers an overruled decision as an enormous declaration of the law and hence, not law

 PROSPECTIVE OVERRULLING

The doctrine of prospective overruling was laid down by Cardozo J in Great Northern Railway v.
Sunburst Oil Refining Co. It means overruling of an established precedent with effect limited to future
cases, leaving all events, which arose before the date of such overruling to be governed by the old
precedent itself. The justification for the doctrine has been further clarified in Linkletter v. Walker. It was
pointed out that the constitution does not insist on overruling to be retrospective and the therefore it is for
the court to say, whether on a balance all relevant considerations, it should be retrospective.

Conclusion

From the brief discussion above about the legal value of precedents we can clearly infer
that these play a very important role in filling up the lacunas in law and the various
statues. These also help in the upholding of customs that influence the region thereby
making decisions morally acceptable for the people. This thereby increases their faith in
the judiciary which helps in legal development. These moreover being a sort of respect
for the earlier views of various renowned jurists, helps in upholding the principle of stare
decisis. It is a matter of great convenience it is necessary that a question once decided
should be settled and should not be subject to re-argument in every case in which it
arises.  It will save labour of the judges and the lawyers. This way it saves lots of time
for the judiciary which is a real challenge in the present day legal system with so many
cases still pending for many years now. Precedents bring certainty in law. If the courts
do not follow precedents and the judges start deciding and determining issues every
time afresh without having regard to the previous decisions on the point, the law would
become the most uncertain. Precedents bring flexibility to law. Judges in giving their
decisions are influenced by social, economic and many other values of their age. They
mould and shape the law according to the changed conditions and thus bring flexibility
to law.
Bibliography
https://www.lawteacher.net/PDF/english-legal-system/Judicial%20Precedent.pdf

http://www.univie.ac.at/intlaw/wordpress/pdf/89_conv_across_90.pdf

Jurisprudence and legal theory P.S. Atchuthen Pillai

A textbook of jurisprudence G.W paton

Article: Presented by Mr. M.S.Krishnan, Senior Advocate